Bjarnason v. Bjarnason

Bjarnason v. Bjarnason

On a balance of probabilities there was a material change permitting variation; the mother, having been primary caregiver and providing continuity and stability in Halifax, should have sole custody and primary care because joint custody would be unworkable given the parties’ acrimony, the father obtained an interim ex parte change without proper notice on facts the court found did not justify permanent removal, and generous access to the father and extended family should be preserved while enforcing future child support through Maintenance Enforcement.

Citation
2007 NSSC 24
Parties
Applicant/respondent: Catherine Ann Bjarnason; Respondent/applicant: Kerry Bjarnason
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
26 January 2007
Procedural Posture
Divorce Act Custody Variation / Final Hearing/variation
Outcome
Mother awarded sole custody, care and control of the children; father granted specified generous access as per the parties’ agreed schedule incorporated into the order; court ordered implementation measures to protect children and promote communication and awarded costs to the mother.
Legal Topics
Custody Variation, Access, Child Support Arrears, Ex Parte Interim Order, Best Interests of the Child, Costs
Source Language
English
Family Law Child Custody Child Support Divorce Custody Variation Access Child Support Arrears Ex Parte Interim Order +2 more

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Parties

Catherine Ann Bjarnason

Applicant/respondent

Kerry Bjarnason

Respondent/applicant

Procedural Posture

Divorce Act Custody Variation / Final Hearing/variation

Legal Issues

  1. 1 Whether there has been a material change in circumstances under s.17 of the Divorce Act permitting variation of prior orders
  2. 2 What custody arrangement (sole, joint or primary care) is in the best interests of the children
  3. 3 What access schedule is appropriate to safeguard children’s welfare and parental contact

Ratio Decidendi

On a balance of probabilities there was a material change permitting variation; the mother, having been primary caregiver and providing continuity and stability in Halifax, should have sole custody and primary care because joint custody would be unworkable given the parties’ acrimony, the father obtained an interim ex parte change without proper notice on facts the court found did not justify permanent removal, and generous access to the father and extended family should be preserved while enforcing future child support through Maintenance Enforcement.

Court Disposition

Mother awarded sole custody, care and control of the children; father granted specified generous access as per the parties’ agreed schedule incorporated into the order; court ordered implementation measures to protect children and promote communication and awarded costs to the mother.

Orders

  • Mother awarded sole custody, care and control of the children; father to have specified access incorporated into the final order as agreed by the parties and interim order extended
  • Father ordered to pay child support in the guideline amount going forward and to register with the Maintenance Enforcement Program